Spycatcher and press freedom

Wednesday 27 November 1991

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THE European Court of Human Rights has confirmed what was pretty
obvious to most people anyway -- that the UK Government overreached
itself four years ago in pursuing court action to prevent newspapers
from publishing extracts from Spycatcher, the memoirs of the former MI5
agent Peter Wright. The Law Lords reached the same conclusion in 1988
when they lifted the injunctions against the book. The judiciary thus
gave notice to the Government that it would not automatically accept its
say-so on what constituted a risk to national security: the likelihood
of real harm had to be shown if freedom of expression were to be
restricted in this way. But the Law Lords' judgment was less than a
victory for free speech, because it appeared to endorse some of the
illiberal assumptions underlying the Government's position. It certainly
didn't concede any public right to information, or any right of the
press to discuss possible irregularities in the security services; it
lifted the injunctions merely because the information had become
available elsewhere, with the publication of the book in the US.

The European Court makes the same distinction. It has ruled that the
confidentiality of the material was destroyed by the publication of
Spycatcher in the US, but that at an earlier stage the injunctions were
legitimate to prevent information from leaking out. But the ruling is
damning for the Government in that it maintains that the purpose of the
restrictions, once the material had ceased to be secret, was simply to
promote the efficiency and reputation of the secret service. The Judges
are also clear that under these circumstances the injunctions prevented
newspapers from giving information on a matter of legitimate public
concern -- a flat contradiction of the Government's way of seeing
things.

A ruling by the European Court may not impress the Euro-sceptics, but
they might bear in mind that the Strasbourg Court is not the long arm of
the EC but an entirely separate international body to which this country
subscribes. It is not a matter for pride that Britain has been in breach
of the European convention on human rights more often than any other
state. The real cause for regret is that the Spycatcher case had to be
taken as far as the European Court. Even now, the position is
unsatisfactory. The court's ruling is not directly enforceable in
British courts and, with its finding that the injunctions were justified
up to the time of publication in the US, is less than a dramatic victory
for press freedom. In the UK, things have been going very wrong in that
department over the past decade. The Spycatcher episode was part of a
pattern -- remember the Cavendish affair, the Zircon raids, the Real
Lives controversy, the Sinn Fein ban, and the setting up of the
Broadcasting Standards Council.

Both the Cavendish and the Spymaster episodes raised, among other
questions, that of the doctrine of confidentiality -- the principle that
a third party should not publish material which is a breach of
confidence. This principle, which fails to make allowance for the
possibility that former security service members may feel compelled to
speak out in the public interest, is a dangerous concept when unopposed
by entrenched rights for the press or freedom of speech. The Spycatcher
affair shows how it can be made to serve the narrow interests of the
Government. Until constitutional protection for press freedom is
achieved the danger will remain, though perhaps, after the Strasbourg
judgment, the Government will be a little circumspect in its use of the
new Official Secrets Act. It may even be forced to think again about the
extent of its powers of censorship.

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